Deployment of Floating Armouries – Rakna Arakshaka Lanka limited

( November 14, 2012, Chennai, Sri Lanka Guardian) Rakna Arakshaka Lanka limited is a Sri Lankan Government owned company which has come to be registered on 23rd Oct 2006 under the provisions of Companies Act and the official web site of Ministry of Defence, Sri Lanka would state that the said company is carrying on business in providing commercial security service for the protection of public and private institutions.

The Sri Lankan Government is mandated in law to submit draft Annual Reports along with the reports of Auditor General pertaining Government owned companies, Government Undertakings, Public Corporation before the Parliament .

The web site gives us to understand that Rakna Arakshaka Lanka limited is functioning directly under the Ministry of Defence, public security and Law & order and the aforesaid company is said to have been established under the vision of His Excellency the president Mahinda Rajapakshe .We are given to understand that although the said company has been incorporated as early in 2006 it has begun its business ventures only on the 7th of Feb 2008.

The Board of Directors ofRakna Arakshaka Lanka limited company is comprised of 4 Directors and one Mrs.Leisha Chandrasena is said to bethe Secretary to the Board of Directors.

The objects with which the company has been incorporated are,

to provide security to vital public and private institutions, installations, localities of economic interest inclusive of those connected with provision of national security enabling to maintain uninterrupted economy of the country,

to assist the security Forces and the police by minimizing their engagements in security duties at vital public and private institution, installations, localities of economic interest outside operational areas enabling them to be engaged in active duties in operational areas,

To assist in the development process of the country,

To assist disaster management activities at times of national calamities,

To assist the government in meeting the problem of unemployment,

to be of assistance in the future welfare of ex-service and police personal and to assist the Ministry of Defence, public Security, Law& Order by training male and female security personal employed byprivate security services.

It is understood that Rakna Arakshaka Lanka limited company, according to the information furnished in its web site, has been providing security to Public Enterprises and Public corporations in Sri Lanka.

The new web site for Rakna Arakshaka Lanka limited company which appears to be under constructionmentions for the first time that the company is providing Air Security and Maritime Security i.e., providing Air Marshals and Sea Marshalsto the aircrafts and seafaring vessels.

We will see about the nature of incorporation of Rakna Arakshaka Lanka limited. As has been mentioned in the aforesaid website Rakna Arakshaka Lanka limited is a limited liability company, a Government owned company and the company’s Memorandum of Association and Articles will reveal the nature of the company and the documents will indicate the amount of share capital contributed by the Government and the share capital contributed by other members.

Sec 2(1) of Companies Act No.17/1982 describes what are private and public companies. The relevant provision reads as follows, “ Sec.2.(1) Any seven or morepersons, or where the company to be formed is to be a private company, any two or more persons, or where the company to be formed is a people’s company, any fifty or more persons, associated for any lawful purpose.

Companies Act also provides for what is a limited company and unlimited company. The company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them is limited company and a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up. Therefore the minimum numbers of members required for formation of a private company are two and in the case of a public company seven and a people’s company above fifty. Every company has to keep registers of its members.

Admittedly Rakna Arakshaka Lanka limited company has only 4 members in its Board of Directors and there is the secretary for the Board of Directors who must be paid servant and Companies Act stipulates requisite qualification for performing the functions of a secretary and the present Secretary happens to be one of the Directors in another company. Among the four Directors, three are Government servants and the 4th Director of the Board is a retired Military officer. The minimum requirements of Directors for a public limited company are seven.

There are legal mandates and requirements like the filing of annual return, a statement containing particulars of total amount ofindebtedness, certified true copy of balance sheet so as to know of the true and fair view of the profit or loss of the company for a particular financial year, copy of audit report and the report of the Directors themselves to know the state of affairs of the company.

In the case of any mismanagement of the affairs of the company or commission of offence like fraud or misfeasance, any aggrieved member of the companymay bring to the notice of the Registrar of companies of such a mismanagement seeking his intervention and initiation of investigation into the matter orthe company in itself maypassappropriate resolution so as to bring the matter to the knowledge and notice ofRegistrar of companies or an application may also be filed before the District court of the area where the company is situate, seeking for an order for making an enquiry and further the Companies Act provides for initiation of prosecution by the Attorney-General.

So for the conduct of business of the public company is concerned it is only its members who are the final arbiters to decide the change in the objects and the nature of the business of the company and the area of its operations and if suchchanges are necessitated. The President of Sri Lanka who is also the Minister of Defence, law and ordercannot at any stretch of imagination interfere with the affairs of the company and Companies Act does not provide or contemplate for interference or interventionof that sort. The Government may interfere when there arisea situation where a private of the company be changed into a public company as enumerated under the Act. Whatever the change that has to be brought in or any alterations to be made in the Memorandum of Association and Articles, the members may, after deliberation and passing the requisite resolution in a meeting convened for the specific purpose, move for amendment or alteration and the Registrar of Companies alone is empowered under the act either to allow or decline permission sought for amendment or alteration in the Memorandum of Association and Articles.

We have already discussed about Avant Garde Maritime Services private limited Ltdin Sind Bad Military Floating vessel. The Avant Garde Maritime Services private limitedinforms in its official web site that it has entered into a joint venture with Government Owned Business Undertaking (GOBU) of Rakna Arakshaka Lanka Ltd (RALL) of Sri Lanka to provide infrastructure facilities for international maritime security services and the same web site states that the former Commander of the Sri Lanka Navy, Vice Admiral D. W. A. S. Dissanayake who is now appointed as the Adviser on Maritime Affairs to His Excellency the President of Sri Lanka is beingplaced as advisor on the Advisory Board of Avant Garde Maritime Services private limited. Sri Lankan peoplehas a right to know as to the kind of agreement or the exact understanding that has been arrivedat between a private security service provider and the President of Sri Lankaand why the President of Sri Lanka himself should be taking so muchpains in placing his advisor as advisor to a privatecompany?

As one would find from the earlier web site that the area of operation and business of security provider of Rakna Arakshaka Lanka limited is within the island. The Avant Garde Maritime services limited is also a company incorporated in Sri Lanka and a private security service provider is not empowered or authorized to carry weapons of any sort except the weapons for their self defence andthe Sri Lankan law permits private security agencies to possess and carry specified weapons while escorting the persons who happened to carry monies belonging to institutions. Neither the local law nor any other international law do provide for transporting armaments en masse over International waters nor even across the delineated Exclusive Economic zone in the International waters. At the time the Sind bad was intercepted and its captain arrested it was informed that there was huge amount of weapons of various sorts in the Vessel.

The web site ofAvant Garde Maritime Services private limited states that the entire management of the company is vested with the retired Military officers and we find that the objects of the company is to provide convenient Infrastructure facilities for Private Maritime Security Companies, to take over and return weapons and the company also boasts very much that it isthe most sought after supplier of weapons and associated items to private Maritime security companies and it is also not known whether the Defence Ministry has the right to sell or hire out weapons to third parties and whether end user certificate can be given to third party- private companies in respect the arms, ammunition and weapons which belong to Sri Lankan Government. Nevertheless, the very propriety of such an act is unwarranted and censurable. The said unfair and unlawful practice has set a precedent already which in turn set in motion several security providers themselves venturing into such an unlawful business andit may also embolden Nations to follow suit Sri Lankan Government and as a consequence of such unlawful and unwarranted business International waters would be infested withillicit arms traders.

So for Sri Lankan Government is concerned,it has, under the garb or pretext of providingsecurity for safe passage of merchant and other seafaring vessels through the international waters,has assumed on itself a nonexistent powersso that the weapons belonging to the Government could be disposed ofsurreptiously as there will no one question the propriety of such an act.

The owners or masters of Merchant ships and other vessels have to make their own arrangement to havesea Marshals and permissible weapons on board the ships for safety passage through International waters after having been procured them from the states whose flag the vessels are flown and it may also be the concern and botheration of States to accord protection for the ships which are registered with them. NATO led flotilla of war ships are already engaged in counter piracy operations in the Gulf of Aden and Indian Ocean and similarly European Union Naval forces have also been deployed to contain the menace of pirates on the seas in the high risk prone areas. The Sri Lankan Government may volunteer to deploy its navy so as to join the international forces in combating the pirates but instead the Sri Lankan Government cannot becomea trader in illicit arms by taking undue advantage over the situation. Whatever the motive, the question that lie before the Sri Lankan people is whether the Government of Sri Lanka has taken the Parliament in its confidence andobtained due approval for carrying on and conducting such business and if such an approval has not been granted then it may be construed that such trade in weaponsis being carried on only illegally.

The Defence Ministry web site has informed recently of an earlier news that Annual Report of Rakna Arakshaka Lanka Ltd was handed over to Secretary of Defence Mr. Gotabaya Rajapaksabut in realitysuch an Annual reportshould have been submitted before the members of the company in a meeting convened for the said purpose and a certified true copy of annual report should have been tabled before the Parliament so as to enable the Committee on public Enterprise to scrutinize such a report and a copy of such an Annual report ought to have been submitted before the Registrar of Companies also. Rakna Arakshaka Lanka limited has celebrated its 4th Anniversary recently and therefore Annual reports for the previous financial years ought to have been tabled before Parliament of Sri Lanka and similarly Annual reports for the previous financial years need also be submitted before the Registrar of Companies.

It is reliably learnt that before the military floating vessels came into being, the Sri Lankan Navy used to sell arms, ammunitions and weapons to Private Maritime Security service providers and it has earned several Million Dollars from and out of that business and how the Sri Lankan Navy could supply weapons to these private Maritime Security service Providersis also a question which the Committee on Public enterprise has to probe in the interest of the Nationandit is in the news that the Sri Lankan Navy has been supplying arms, ammunitions weapons to 38 such private Maritime Security Providers and more than 50 Merchant Ships. The answers to questions like Whether such a businessdone by Sri Lankan Navy has been authorizedby Committee on Public enterprise, whether the business is lawful, whether the conduct of such business has ever came to the knowledge of the committee on Public enterprise which examines the Government owned business concerns , for how long the weapons are being supplied by the Sri Lankan Navy to third party service providers and where went all the amounts which were collected all these years, are necessarily to be sought and found because Rulerswho speak of Nationalism, patriotismare not patriotic any longer but strive hardtowards their self interests.

We have earlier seen that the Defence Ministry under the guidance of Defence Secretary has been supplying arms and ammunitions to Avant Garde Maritime Service Private Company. Having been entered into a clandestine deal with the Avant Garde Maritime Service Private Company, the Sri Lankan Government has just inducted Rakna Araksha Lanka Ltd into the business so as to operate beyond the country’s Exclusive Economic Zone in the International Waters.

In the article ‘Sind bad the Floating military Arsenal’ it has been stated that the web site of Avant Garde Maritime services has mentioned that the Defence secretary spoke of there being of seven Floating Military Arsenalin seven cities around the word and it could not be ascertained which are the seven cities then. Now we do understand that Sind bad the Floating military vessel was intercepted in the Gulf of Aden, off the coast of Fujairah along with two other vessels which accompanied Sind bad.

The above picture will delineate the areas of operation of the floating military Arsenal of Avant Garde Maritime service private limited and Rakna Arakshaka Lanka limited in the International waters and it has also come to light that two floating vessels are now patrolling off the coast of Galle. The total number of floating vessels with which both the companiesare engaged at present in transporting illegal arms and weapons to these places is not ascertainable and Sri Lankan Government is bound in law and a duty is cast on it to inform theNation whether these vessels which are engaged in transporting arms, ammunitions and weapons are the properties of the Government of Sri Lanka or the properties of private personsso as to attest to the nation that its activities aretransparent andthe laws of the land are being followed duly.

The Defence Secretary has published a Gazette notification stating that land based naval Armouries at Galle and Colombo would cease functioning from 15th Oct 2012 and that the Ministry of Defence would monitor all the activities pertaining to the floating Armoury and Sri Lanka Navy would provide security and supervision for service boats during weapon and sea Marshall transfer operation and control of floating would be handled jointly in view of national security reasons. The entire arms, Ammunitions and weapons which were in the land based armouries have been removed by the aforesaid notification and there is no knowing as what happened those weapons and therefore people must take steps to know about the missing weapons .

The sudden induction of Rakna Arakshaka into the illicit arms trade has given cause for grievance for PrivateMaritime Security companies because of the change in the procedure in supplying weapons and the Private Security service providers have to purchase weapons only from Avant Garde Maritimeservice private limited and Rakna Arakshaka Lanka Limited. The Ceylon Association of Shipping Agents and others have taken up the matter with the Defence secretary but their efforts has ended in vain and in fact the Defence Secretary would defend his action by saying that Sri Lanka is a Sovereign Nation and the business in vending weapons is lawful.

It was in the news that 18 commercial vessels belonging to LTTE and their Rs.20,000 crores were expropriated after the war. The Sri Lankan Governmenthas not informedthe Nation as to what happenedto those ships and there is no knowing as to the present location those 18 commercial vessels and therefore there is reason to believethat those commercial shipshave been commissionedfor service to RaknaArakshaka ?It is recent news that a cargo vessel which has been intercepted by the Defence Ministry made a claim that the vessel is the property of LTTE but it so happened that it is the property of Malaysian National.

The Maritime Zones Law, No. 22 of 1976, Sri Lanka, speaks of delimitation and demarcation ofTerritorial Sea in the international waters and the Nations signatory to the Conventionon International Law of seas have to legislate National law on the lines of Law of Seas and the sec. 3 of the said Maritime Zones Law states that ships of all states shall enjoy the right of innocent passage through the territorial sea so long such a passage is not prejudicial to the peace, good order and security ofSri Lanka and any right thinking man would question whether the same yard stick could not be applied or applicable to the case of the territorial waters, contiguous zone or Exclusive Economic zone of other Maritime Nations in whosewaters the Floating Arsenals pass through and in reality the floating Arsenals laden withlethal weapons which ply and patrol their waters should be posing danger and threat to the safety of the region.

The Merchant Shipping Act , Sri Lankais applicable to ships registered in Sri Lanka and such ships may be in any part of the world andships while being in a port of Sri Lanka or within the territorial waters of Sri Lanka cannot be charteredby the owners or masters ofthe ships without permission having been obtained from Director appointed under the provisions of the Actand failure to obtain permission is an offenceand to take the ship out of Sri Lankaa licence need necessarily be obtained from the Director and failure to do so will entail punishment and similarly officer of customs has to grant a port clearance and without aport clearance no ship can be moved out of the port and contravention of the provisions of the Act will entail punishment. Whether the Floating Armouries have been exempted from application of provisions of the aforesaid Act?

The Avant-garde Maritime Services Private Limited is a signatory to The International Code of Conduct for Private Security Service Providers but whereas Rakna Arakshaka Lanka Ltd has not become a signatory to International Code of Conduct for Private Security Service yet as the code contains certain principles whichcreate some obligations on the part ofPrivate Security Providers (PSPs) with particular regard to international humanitarian law and human rights law and therefore, is not such a failure an open affront to and defiance of said law?

The Standing Orders of Parliament of the Democratic Socialist Republic of Sri Lanka prescribe rules pertaining to all the Committees, constitution of Committee of selection, and the Committee on Public Enterprise and other Committees and it is said that there are seven Committees and the Committee on Public Enterprise is one which is relevant for our discussion. The Committee on Public Enterprise consisting of 31 members examines the accounts of Public Corporation and of any business or other undertaking vested underwritten law in the Government.

The Sri Lankan Government is mandated in law to submit draft Annual Reports along with the reports ofAuditor General pertaining Government owned companies, Government Undertakings, Public Corporation before the Parliament .

The Government is expected to specify in great detail and justify to the satisfaction of the Committee the proposed course of expenditure, Financial procedures, planning, control and accountability which includes estimates, new expenditures and taxation. Since Rakna Arakshka Lanka limited is Government owned company the accounts of the company ought to have been audited by the Auditor General as contemplated under the Financial control Act and the company ought to have submitted a draft Annual Report alongwith the report of Auditor General to Parliament in respect of the previous financial years.In the event of there being evidence and proof to substantiate the claim that the legal requirements and legal mandateshave not been fulfilled and complied with duly then we may safely conclude that Avant Garde Maritime service private limited and Rakna Arakshaka Lanka Limited are bogus companiesand that the proprietors of Avant Garde Maritime service private limited and Rakna Arakshaka Lanka Limited are only the Rajapakshe brothers!

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Author: Sri Lanka Guardian

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